Judge: NSA doesn’t have to keep all data as part of key surveillance lawsuit

Gov't counsel: Forcing us to save Section 702 data would harm national security.

OAKLAND, CA—The federal judge that had temporarily ordered the National Security Agency to preserve all evidence in a longstanding surveillance case, including data gathered specifically under the government’s Section 702 program, has now reversed that order.

“In order to protect national security programs, I cannot issue a ruling at this time. The Court rescinds the June 5 order,” Judge Jeffrey White said from the bench.

Further Reading

After FISC reverses itself, EFF also asks Feds to disclose what was deleted.

Section 702 of the Foreign Intelligence Surveillance Act is the legal authority which the NSA uses as the basis for PRISM and other surveillance and data collection programs. The government is still required to preserve data collected under Section 215 of the Patriot Act, the law which governs the telecom metadata handover program, the first disclosure to come from the documents provided by Edward Snowden.

In a hastily-called hearing before a federal judge on Friday, lawyers from the Electronic Frontier Foundation (EFF) faced off against lawyers from the Department of Justice (who appeared by telephone) in a case that long pre-dates the Snowden revelations.

Following a request for an emergency hearing from the EFF, Judge White had issued an order in Jewel et al. v. NSA, requiring the government to preserve all collection records, including those specifically under Section 702. The EFF had wanted the NSA to preserve all data collection in bulk, regardless of what legal authority it was collected under—that way, the government would be forced to hand it over as part of the discovery process as the case moves forward.

“I don’t want the preservation effects to get in the way of national security, but I don’t want national security to checkmate our case,” Cindy Cohn, an EFF attorney, told the court.

She vigorously argued that the government’s actions dating back to the beginnings of this case should be thought of in two sections, the first being the bulk collection, and the second being the filtering through the government’s minimization procedures.

“The fight in our case has been largely about Step 1,” she said. “The government’s argument is about Step 2. We’re arguing on behalf of the millions of people whose e-mails were collected.”

In filings submitted before the evidence hearing, the government argued that being compelled to retain such information in this case would be catastrophic.

“Any attempt at an immediate solution would unleash a series of consequences that the US government cannot predict because a requirement to preserve all data acquired under Section 702 presents significant operational problems, only one of which is that the NSA may have to shut down all systems and databases that contain Section 702 information in order to preserve,” wrote Richard Ledgett, the NSA’s deputy director, in a filing (PDF). "The suspension of such operations would immediately impair the national security of the United States."

“I’m trying to protect the NSA’s national security interest,” Anthony Coppolino, a government attorney, told the court. “The steps that they have asked are not reasonable because they are far too burdensome.”

Although the ruling is a temporary setback for the plaintiffs, the case nevertheless will continue forward. The judge also set filing dates for new documents for late this month.

Going back to 2008

The case was originally brought by the EFF on behalf of Carolyn Jewel, a romance novelist who lives in Petaluma, California, north of San Francisco.

In the 2008 original complaint (PDF), Jewel and the other plaintiffs alleged that the government and AT&T were engaged in an “illegal and unconstitutional program of dragnet communications surveillance conducted by the National Security Agency and other Defendants in concert with major telecommunications companies.” The evidence stemmed from materials leaked by former San Francisco AT&T technician Mark Klein in 2006.

For years, the case stalled in the court system, but it gained new life after the Snowden disclosures last summer.

On March 10, 2014, Judge Jeffrey White issued a temporary restraining order (PDF) compelling the government to retain everything it collected even after the standard five-year deletion period, so that the plaintiffs could pursue civil discovery and if necessary, prove that their calls were among those swept up.

Since the Snowden leaks, federal courts nationwide, including the Foreign Intelligence Surveillance Court (FISC) have taken the unprecedented step of declassifying a number of court orders and related documents that have shed light on its legal rationale and actions.

In August 2013, the FISC declassified an opinion from September 25, 2012 that described how the government “orally informed the Court that the NSA had made a ‘corporate decision’ to purge all data in its repositories that can be identified as having been acquired through upstream collection before the October 31, 2011 effective data of the amended NSA minimization procedures approved by the Court in the November 30 Opinion.”

In short, no one is really sure exactly what the NSA has already deleted.

An accidental discovery

Friday’s hearing in Oakland came about due to a very recent e-mail exchange (PDF) between one of EFF’s lawyers, Cindy Cohn, and Marcia Berman, a Department of Justice attorney.

When Cohn asked Berman and other Justice officials to confirm that no additional information would be destroyed given a government-requested extension for a reply brief, Berman’s reply on June 2 was terse.

Cindy—what it means is that we have already explained in our opening brief that we are in compliance with our preservation obligations and do not feel that we should have to make any further assurances or undertakings to accommodate plaintiff’s need for additional time.

After a few more exchanges, Berman elaborated on June 5:

We do not understand why you see the need to file another [temporary restraining order] motion, because the Court is aware of the parties’ disagreement regarding the scope of the Government’s preservation obligations in this case, and has established a briefing schedule to resolve the issue.

. . .

We have also detailed our preservation activities with respect to the President’s Surveillance Program. The Court is presently considering whether the Government must preserve material obtained under Section 702 of [the Foreign Intelligence Surveillance Act] in the context of the Jewel/Shubert litigation.

To which Cohn replied:

We understand your response to say that the government is continuing to destroy evidence relating to surveillance under Section 702.

In the interim, the restraining order remains in effect: Defendants are ordered not to destroy any documents that may be relevant to the claims at issue in this action, including the Section 702 materials.

But after listening to the government’s arguments both in filings and the in-court hearing, Judge White reversed himself.

“These persons can’t possibly be 702 targets”

Beyond harming national security interests, the government also argued in court that Jewel and the other plaintiffs lacked standing to sue the government. Specifically, he cited the February 2013 Supreme Court decision, Clapper v. Amnesty International, which found that individuals or groups can’t sue the government because they can’t prove that surveillance took place. But that decision was rendered prior to the Snowden disclosures.

As the government’s attorneys told the court, Section 702 is designed to target non-US persons outside the United States, and there are procedures in place to enforce those restrictions. Jewel and the other plaintiffs, they argued, lack standing, because they are Americans living in the United States.

“These persons can’t possibly be 702 targets,” Coppolino said. The judge did not rule specifically on this point.

One person in the courtroom who wasn’t buying the government’s arguments was Mark Klein himself, the AT&T technician who kicked off the entire case. Since working for AT&T, Klein has retired, and until recently, was spending his free time volunteering at the Marine Mammal Center in nearby Marin County.

“The government is a bunch of slimeballs,” he told Ars. “It’s eight years already and they’re still saying that [the surveillance program] only involves targeted people. Now we have Snowden’s undeniable slides. Everyone in the country is affected. We know they’re collecting everything.”